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Employment status – still a thorny issue
An Employment Tribunal in Watford was asked to rule on the employment status of a courier, delivering parcels for Yodel. He did not have to wear a uniform, used his own van and mobile phone, and was not required to have any Yodel branding on his van. He could work for other couriers at the same time as working for Yodel, and was allowed to sub-contract his work. Yodel argued that he was a self-employed contractor, but the individual argued that he was a worker.
The Working Time Regulations 1998 state that, if an individual can engage a substitute to do all or part of their work, they cannot fall within the definition of a worker (and, therefore, do not have rights relating to annual leave, rest breaks, limit on the working week etc). The Tribunal, in this case, expressed a concern that this is incompatible with EU law, and has therefore referred a number of questions relating to employment status to the Court of Justice of the European Union. In addition, the Tribunal has asked for guidance on how working hours should be interpreted when the individual has, within some broad parameters, the right to set his/her own hours.
It will be some time before we get answers from the Court of Justice, but this case is a useful reminder that there are still uncertainties about the definition of employment status. The current tests applied by the Employment Tribunal look at the following issues:
- Is the individual under the control of the employer?
- Does the individual have to provide work personally?
- Are the terms and conditions consistent with employment?
- Is the employer obliged to provide work?
- Is the individual obliged to do the work that is offered?
If the answer to all those questions is ‘yes’ the individual is likely to be an employee.
However, this is a complex area, and if you are facing any situations that are unclear, please contact us to discuss the specific facts.
Obligations to pay Statutory Maternity Pay
The recent case of Davuluri v Pharmvit Ltd  was a useful reminder about the obligation to pay Statutory Maternity Pay (SMP). The case itself is a rather complex mix of events which led to an unfair dismissal. However, the important point that is worth exploring relates to the employer’s attitude to SMP. When the employee informed her employer that she was pregnant, she was told that the employer did not pay SMP, that she should resign and then claim Maternity Allowance. This was found to be discrimination on the grounds of pregnancy/maternity.
- All women are entitled to take Statutory Maternity Leave. To qualify for SMP the woman must have worked for her employer for at least 26 weeks by the 15th week before the Expected Week of Confinement (EWC) (the date the baby is due). The woman must earn at least £118 per week.
- If a woman is not entitled to receive SMP she might be able to claim Maternity Allowance. To do this she must complete the claim form, or contact the Job Centre Plus for a copy of the form. Maternity Allowance is not paid by the employer.
- If an employee leaves employment she is still entitled to receive SMP if she has met the qualifying conditions.
- If a woman leaves your employment and starts work with another employer after the 15th week before the EWC, but before the birth of the child, you do not have to pay SMP for any weeks that they work for the employer after the baby is born. However, you do have to pay SMP for any full weeks that they do not work for the new employer after the baby is born.
Colour blindness and indirect discrimination
There are some jobs that cannot be completed safely if the employee is colour blind. However, care needs to be taken because red-green colour blindness affects 0.35% of women and around 5% of men. So, it could be argued that men are being disproportionately affected by any restrictions related to colour blindness.
In Wisbey v Commissioner of the City of London Police  the employee worked as an authorised firearms officer and was part of the rapid response driving team. He had mild red-green colour blindness, and had been tested when he first joined the police force. New standards were brought in and he was removed from both teams due to his colour blindness. There were good reasons, which had been investigated, to remove him from firearms duties but there were no good reasons given to remove him from rapid response. This was found to be indirect sex discrimination, because men would be adversely affected more than women and removing him from the rapid response team was not a ‘proportionate means of achieving a legitimate aim’.
- If you have any essential requirements for a job, consider whether they treat one group of employees adversely.
- If the requirements do have a stronger impact on one group of employees, be sure that this can be justified. If you are at all unsure, please contact us to discuss the situation.
Vegetarianism is not a protected belief
In the Equality Act 2010 there are nine protected characteristics. These are the grounds on which an employer cannot discriminate, and include, for example, sex, race, disability. Another one of these characteristics is religion/belief. To be covered under the heading of ‘belief’, the issue must be a philosophical belief which is more than an opinion and it must be genuinely held. It must be cogent, serious and apply to an aspect of human life or behaviour.
In Conisbee v Crossley Farms Ltd and others  an employee argued that he had been bullied due to being a vegetarian. The first question for the Employment Tribunal was whether vegetarianism was a protected belief. It has concluded that it is not, because it was an opinion more than a belief and there were a number of different reasons that someone might be vegetarian which suggested that the ‘belief’ was not sufficiently cogent. The Employment Judge hinted that he might conclude that veganism is a protected belief because it is more cogent.
- ‘Belief’ can cover a range of different issues, so if an employee is arguing that s/he has been treated less favourably due to a belief always consider whether this might be a protected belief. If you are unsure contact us to discuss.
- Although the employee in this case cannot proceed with a discrimination claim, someone in this situation could potentially argue that there had been a breach of the implied term of mutual trust and confidence if the employer knew that bullying was taking place and did nothing to stop it. If the employee resigned in response to the breach, s/he could potentially claim constructive dismissal.
Detriment relating to rest breaks
Under the Working Time Regulations 1998, employees are entitled to a 20-minute break after working for at least six hours, a break of 11 hours in every 24 and a break of 24 hours in every 7 days. If an employee refuses to work hours that breach these requirements s/he can claim automatic unfair dismissal, if s/he is dismissed, or a detriment, if the employee is punished in some other way.
In Pazur v Lexington Catering Services Ltd  the employee was assigned to work for a client and was asked to work hours that meant he would get no break. He refused to go back to that client, and was subsequently dismissed. The employer argued that he had not actually refused, but this was not accepted as an argument and the dismissal was found to be automatically unfair.
- Always check that any shift patterns you ask employees to work are compliant with the Working Time Regulations 1998.
- If you did ask an employee to work hours which breached the Regulations and they refused you cannot impose any sanction on them.
The length of a disability
A disability is defined as a physical or mental impairment which has a substantial and long term adverse effect on the person’s ability to carry out normal day to day activities. ‘Long term’ is defined as an impairment which has lasted for at least 12 months, is going to last for at least 12 months in medical opinion, or is terminal.
In Parnaby v Leicester City Council  the employee was suffering from depression which had been caused by work related stress. At the time of his dismissal he had not been ill for 12 months, and it was argued that he was not disabled because the impairment did not meet the definition of ‘long term’. The Employment Tribunal found that the impairment would not last for 12 months because the cause of the problem was work, and once he was dismissed that cause would be removed. The Employment Appeal Tribunal disagreed.
The question is whether the illness is likely to recur in future, or likely to last 12 months. It is not sufficient to guess what might happen when the cause of an impairment is removed. It is required to question whether the problem could be reasonably likely to reoccur.
- If an employee is claiming that s/he is disabled, always seek a medical opinion. If the impairment has not already lasted for 12 months seek a medical opinion as to whether it is likely to last that long.
- If an employee is suffering from work related stress, s/he might also bring a personal injury claim. Contact us if you are unsure whether this is a possibility.
Bringing a claim within time limits
If an employee wants to bring a claim to the Employment Tribunal this must typically be done within three months of the event occurring (e.g. within three months of the date of dismissal for an unfair dismissal claim). The time length is longer for some claims (e.g. it is six months for equal pay claims and claims for a statutory redundancy payment). To bring a claim to the Tribunal an employee must, in almost all cases, first engage with early conciliation. The time taken for early conciliation ‘stops the clock’ on the three months ticking down, and then it restarts if the early conciliation is unsuccessful. There must always be at least one month to bring a claim after early conciliation has concluded – which might mean that the original three months is extended.
In Pearce v Bank of America Merrill Lynch and others  the employee was absent due to illness for four months after he had made a protected disclosure. He then instructed solicitors, who took 16 days to start early conciliation. Early conciliation was unsuccessful but the employee waited a further month before bringing a claim. It was out of time and it would hold that there was no good reason that he had waited so long to bring the claim.
- If you receive notification from the Employment Tribunal that an employee has made a claim against you, always start by checking the dates.
- If the claim is out of time, a preliminary hearing should be held to review the matter.
- It’s always advisable to still prepare your response on the ET3 (the response form whilst waiting for the preliminary hearing) because the Employment Tribunal could exercise their discretion and still accept the claim.
A final word
To support our clients with their onboarding of new recruits and increase employee engagement, we have been helping many of our clients with preparing a ‘Culture Booklet’ instead of, or in addition to, a standard Staff Handbook. A Staff Handbook containing all of a business’s policies and procedures is a useful document, but it does not always give the best impression of a business to an eager and motivated new recruit.
A Culture Booklet tries to engage employees right from the start and focuses on the positive aspects of working for your business and can include your mission, vision and values - rather than the negatives. No one wants to start a new job and then immediately have to read through prescriptive rules about disciplinary, grievances and what will happen if they don’t perform! A Culture Booklet should be a guide to the culture and ethos of your organisation. It should sell the benefits, the possibilities for ongoing development and growth, and ultimately confirm to the new recruit that they have made the right choice in accepting the offer of employment.
This is not to say that you need to ditch all your policies and throw your Staff Handbook in the bin! However, you might want to consider what impression you are giving to new recruits with your employment documentation and carefully consider the purpose and tone of each documents. If you want us to review your employment documentation or want to discuss the possibility of a Culture Booklet, please drop us a line.